Who Gets Custody of Purchased Embryos?

In a unique contract law case, the Ontario court was asked to rule on which of two former spouses is the “owner” of an embryo created from purchased gametes during their marriage.

During their 10-year union the couple had paid US$11,500 to purchase donated eggs and sperm from a U.S. company. Four embryos resulted, only of two of which were viable. One was implanted in the wife, and she gave birth to the couple’s son in late 2012. Less than 10 days later, the couple separated, and an acrimonious divorce ensued.

The wife, now 48 years old, wanted to use the second embryo that remains in storage, with the promise that she would not ask the husband for child support in the future, in the event that the process resulted in the birth of a child. The husband preferred to have the embryo donated. Neither spouse has a biological connection to the embryos.

To resolve the impasse, the couple appeared before the court, which determined that the matter essentially boiled down to a battle of competing contracts: The parties had signed one agreement with an Ontario Fertility Center, and had also signed a contract with the U.S. company, each of them purporting to cover what happens with extra embryos. The two contracts were incompatible with each other by their terms, so the court was asked to determine which of them governs the situation.

Under the Ontario contract, the parties agreed that in the event of separation or divorce, the wishes of “patient” – which was contractually defined as being the wife – would be respected. The wife naturally urged the court to endorse this contract, allowing her to keep the last embryo; she also pointed out that it was made from the same genetic materials as the parties’ son, who would benefit from having a sibling.

The U.S. contract stipulated that the embryos were “property” and gave options on how they were to be disposed of. The parties chose “donation” in the event they were unable to agree. In the event of separation or divorce, the contract put the responsibility for deciding on a court, and eliminates consideration of the parties’ wishes. The husband argued in favour of this U.S. contract being approved by the court, and pointed out that he had himself paid the entire purchase price for the embryos, arguing they were therefore his “property.”

In settling this novel dispute, the court started its ruling this way:

There is no law on point that has considered how to dispose of embryos when neither party has a biological connection to the embryos.

The court noted that Canadian federal law actually makes it illegal to purchase and sell embryos; however, that was not a legal impediment to making a ruling here. Under either contract, the parties had agreed between themselves that the embryos would be treated as “property”. Ontario provincial family legislation addressed some property-division issues, but since there was only one embryo, it could not be split or sold in the customary way.

In short: since the embryo could not be divided, nor could it be sold and the proceeds divided, the ownership had to be determined by what the former couple intended. This could be determined solely by looking at the contracts they had signed. Neither of them argued that they had been unduly influenced when doing so, that they did know what they were signing, or that there were other reasons to suggest the contracts were invalid.

Looking at their wording, the court concluded that the Ontario contract which called for respecting the “wishes of the patient” had to govern. (And it added as an aside, that the best interests of the couple’s existing son was not a relevant consideration to this outcome).

This meant the embryo was to be released to the wife. However – and despite the sale of embryos being illegal – the court still had to acknowledge that the husband had paid for the embryo, and that it was property. It therefore ordered the wife to reimburse the husband for his monetary contribution: Since four embryos cost US$11,500, the husband’s half-share of the one remaining embryo would be US$1,438 USD.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com